Arbitration not applicable in my case? (Cavalry/Kings County NY) - PLEASE HELP

[FightingCavalry]

1. Who is the named plaintiff in the suit?

Calvary SPV I, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

NY Law Firm

3. How much are you being sued for?

Just under $2500

4. Who is the original creditor? (if not the Plaintiff)

Citibank N.A.

5. How do you know you are being sued? (You were served, right?)

Received Summons in the mail, was not served.

6. How were you served? (Mail, In person, Notice on door)

Mail

7. Was the service legal as required by your state?

I don’t think it was. I got a hold of the Affidavit of Service and it states that they made one attempt to serve me, at a time when it can be reasonably assumed i was at work (i was), and apparently they left it with a John Doe, a male Co-resident. my only co-resident is my girlfriend. they also describe the door/ wall/ floor and its totally off. they have either made a mistake and delivered it to the wrong house or never bothered to do it in the first place and just filled in nonsense on the affidavit. 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

no correspondence

9. What state and county do you live in?

New York, Kings County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Mid 2013 (i have a few months before i'm outside the SOL)

11. What is the SOL on the debt? 

6 years (NY)

6 years (S Dakota, where Citibank is incorporated)

12. What is the status of your case? Suit served? Motions filed? 

Suit served

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

no

14. Did you request debt validation before the suit was filed?

no

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

I have a few more weeks to respond, based on the date the Affidavit of Service was filed. I'm planning on getting all my ducks in order and answering next week. 

they allege the following:

1. Paintiff is JDB
2. Plaintiff is the purchaser of account
3. Defendant is Me
4. On date, Plaintiff purchased debt that Defendant is obliged to pay
5. Defendant and OC entered into agreement wherein he received credit
6. Defendant agreed to pay said credit
7. Defendant failed to make payments
8. Payment has been demanded and remains unpaid
9. Plaintiff has suffered damages for XX amount.

Wherefore plaintiff asks judgment for xx amount with interest from the date of any judgment granted and all costs and disbursements of this action and any further relief the court deems proper.

i have not received an interrogatory questionnaire. 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

2 pages from Last Statement from OC

———————————————————————————

I was hoping to use the arbitration strategy to fight this suit but i’m starting to suspect that it might not be applicable in my case. any advice on how to move forward would be appreciated!

so my concern is the “small claims” limit on arbitration in the Citibank credit card agreement: "Arbitration limits • Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court."

My suit is filed in the Kings county CIVIL COURT, at first i was hoping that this was different from a small claims court but i think it might be the same thing. “The Civil Court of the City of New York has jurisdiction over civil cases involving amounts up to $25,000 and other civil matters referred to it by the Supreme Court. It includes a small claims part for informal dispositions of matters not exceeding $5,000 and a landlord and tenant/housing part for landlord-tenant matters of unlimited amounts and housing code violations.” Has anyone here from Brooklyn been able to successfully get an MTC arbitration? Does this mean that arbitration is a no-go?

Any other ways for me to fight this? the only other chink in the JDB’s case i’m seeing is the fact that they haven’t served me properly. I’ve seen lots of cases with judgements being dismissed in appeals court for bad service/ lack of due diligence ect, but can this be used to get the case dismissed from the start? it seems like they can just ask the court to give them another chance to serve me properly. Is it a very terrible idea to let a default judgment be made and then appeal to have the judgment vacated for bad service? could they sue me again after that for the same debt if i’m successful in having it vacated, would the SOL still be tolled at the current date if they did that or is it possible that by then i would be outside the SOL?

Also Kings County Civil Court is not yet open for e-filing, does this mean i need to hire a process server to serve the answer to Grossman & Karaszewski? or is filing with the Court Clerk enough?

i've tried looking for legal counsel but people are hesitant to take me on because of the low amount of debt. it doesn't seem to make much sense financially for me, they are all advising me to settle if possible, so at the end of the day im either paying money to the JDB or the JDB + layer, it comes out to about the same if they can settle or more if they cant. 

thank you for your time!

[FightingCavalry]

bump

i really have no idea how to move forward. I’ve cobbled together a general denial answer to file with the clerk. I’ll post it after work today to get some feedback on that, but Is a general denial appropriate? 

I’m not sure what my defense strategy should be, what’s the best way to get the JDB to talk settlement. Or even if I’m ok with paying the full amount, what’s the next best course of action? Will they drop the suit if I call them? 

[Clydesmom]

On 10/22/2018 at 11:21 AM, FightingCavalry said:

I was hoping to use the arbitration strategy to fight this suit but i’m starting to suspect that it might not be applicable in my case. any advice on how to move forward would be appreciated!

so my concern is the “small claims” limit on arbitration in the Citibank credit card agreement: "Arbitration limits • Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court."

My suit is filed in the Kings county CIVIL COURT, at first i was hoping that this was different from a small claims court but i think it might be the same thing.

The only thing that happens if your motion is denied because the Judge rules you are in a small claims case/court is you will have to settle, defend the suit or file bankruptcy.  You have nothing to lose by trying you just need to be prepared they argue it IS small claims and have case law and a counter argument why it isn't.

On 10/22/2018 at 11:21 AM, FightingCavalry said:

the only other chink in the JDB’s case i’m seeing is the fact that they haven’t served me properly. I’ve seen lots of cases with judgements being dismissed in appeals court for bad service/ lack of due diligence ect, but can this be used to get the case dismissed from the start?

Technically you can but you do know about the suit as they backed up service with alternate service through the mail.  All that will happen is they will re-serve you.  It buys time but won't make the suit go away.

3 hours ago, FightingCavalry said:

I’m not sure what my defense strategy should be, what’s the best way to get the JDB to talk settlement. Or even if I’m ok with paying the full amount, what’s the next best course of action?

You can settle any time prior to a verdict.  If you want to do that I would offer a 40% lump sum cash offer, no 1099-c, the rest of the amount is disputed and the matter is settled in full, no re-selling the debt along with deletion of their trade line.  You can keep negotiating until you both reach terms you can agree to.

3 hours ago, FightingCavalry said:

Will they drop the suit if I call them?

No.  If you reach settlement terms that would include withdrawing the suit.  Get ALL terms in writing BEFORE you pay.

[coolceruleanblue]

Go to Kings County CLARO! Their meeting times and info are below.  Go to them this Thursday, they are volunteer attorneys who help with civil suits in NYC. They helped me with two of my cases (one with Cavalry). They usually recommend NOT settling in NYC with a JDB because NYC is a very consumer-friendly in this aspect. 

Times: Thursday 2:30 - 4:30 p.m.
                and 6:00 - 8:00 p.m.

Location: Kings County Civil Courthouse
    141 Livingston Street

 

[FightingCavalry]

@Clydesmom Thank you so much for taking the time to respond!

On 10/29/2018 at 2:26 PM, Clydesmom said:

You have nothing to lose by trying you just need to be prepared they argue it IS small claims and have case law and a counter argument why it isn't.

Is there an argument to be made that it ISN'T small claims court? 

@coolceruleanblue thank you! i will stop by there tomorrow and run my questions and answer to the complaint by them, and update here with the results. 

I found a post on here by @sidthekid44  that is nearly identical to mine, so i used his answer as a template (Thank you Sid!) i have two questions about how to amend it to fit my case a bit better.

Quote

CIVIL COURT OF THE CITY OF NEW YORK

STATE OF NEW YORK: COUNTY OF KINGS

 

Cavalry SPV I, LLC

Plaintiff,

-vs-

ME

Defendant.

Index No:  XXXXXXXXXX

 

DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT ON ACCOUNT

DEFENDANT, MY NAME, answering Pro Se, without waiving any affirmative defense, as and for an Answer to Plaintiff's Complaint, state the following upon information and belief:

 

1.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 1 of Plaintiff's Complaint.

2.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 2 of Plaintiff's Complaint.

3.  Defendant admits the allegations set forth in Paragraph 3 of Plaintiff's Complaint.

AS FOR FIRST CAUSE OF ACTION

4.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 4 of Plaintiff's Complaint.

5.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 5 of Plaintiff's Complaint. 

6.  Defendant denies the allegations set forth in Paragraph 6 of Plaintiff's Complaint and demands strict proof thereof.

7.  Defendant denies the allegations set forth in Paragraph 7 of Plaintiff's Complaint and demands strict proof thereof. 

8.  Defendant denies the allegations set forth in Paragraph 8 of Plaintiff's Complaint and demands strict proof thereof.

9.  Defendant denies the allegations set forth in Paragraph 9 of Plaintiff's Complaint and demands strict proof thereof.

 

AFFIRMATIVE DEFENSES

1.  Lack of subject matter jurisdiction.  The underlying contract for the alleged debt contains a private arbitration clause and defendant has chosen arbitration as the forum for this dispute, therefore, this Court lacks subject matter jurisdiction.

2.  Failure to state a claim upon which relief may be granted.

3.  Defendant denies the amounts claimed by the Plaintiff.  Defendant demands Plaintiff verifies a detailed accounting of all alleged purchases, charges, and credits to the alleged account.

4.  Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

5.  Lack of standing.

6.  Failure of consideration.

7.  Plaintiff is barred under the Fair Debt Collection Practices Act, and other relevant federal and state statutes, from collecting any interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law.  Plaintiff has failed to attach proper documentation to verify such interest is permitted.

8  Defendant reserves the right to amend this answer and to assert any affirmative defenses that become known or available.

 

PRAYER FOR RELIEF

 

WHEREFORE, the defendant's pray for relief from this honorable court as follows:

A.  That the Plaintiff takes nothing by way of this Complaint,

B.  To dismiss the Complaint with prejudice based upon the admissions, denials, and defenses alleged herein,

C.  To award the Defendants' costs, and

D.  To award the Defendant such other and further relief as this Court deems just and equitable

 

Respectfully submitted

 

_____________________

ME

 

Dated: NOVEMBER XX, 2018

1.  Lack of subject matter jurisdiction.  The underlying contract for the alleged debt contains a private arbitration clause and defendant has chosen arbitration as the forum for this dispute, therefore, this Court lacks subject matter jurisdiction.  I have not yet filled out any forms, asked for arbitration, or emailed the plaintiff with my intent to move this into arbitration... so should i take this out? if i submit the MTC along with my answer and mail out the forms to AAA for arbitration the same day will that be ok? or can i include this as a defense in my answer and then do all those steps after?

2. should i add the fact that i was not properly served in my defense? in which case what is the proper wording for that?

 

Thank you!!!

[Guest usctrojanalum]

You should state that you werent properly served as a defense.

You should also make a motion to dismiss based on lack of service.

You should go to kings county claro to help you do this. 

 

[Guest LittleBigHorn]

Fighting Cavalry,

  I'm about a week behind you with my situation being almost identical to yours. Kings County, summons in the mail box, etc...  Have you learned anything not posted here that would be helpful? Was Kings County CLARO helpful?  

 

Thanks in advance!

 

[fisthardcheese]

If nothing says Small Claims division on the paperwork or on the court docket online, then it probably isn't.  If I had a question of this nature, I would just call up the court clerk's office with my case number as ask if this case is filed in the small claims division or not.

Also note that card agreement language only prohibits arbitration in small claims "SO LONG AS IT REMAINS IN SMALL CLAIMS".  If you ARE in small claims, I would be looking at how to get it out of small claims, or wait until I lose and file an appeal in the higher court and THEN file my MTC immediately.